The Law of Stigma, Travel, and the Abortion-Free Island

The Law of Stigma, Travel, and the Abortion-Free Island

In 1988, the Supreme Court of Canada decriminalized abortion in R. v. Morgentaler. 1 Almost immediately thereafter, the Maritime province of Prince Edward Island (“P.E.I.”) passed a legislative resolution opposing the provision of abortion services on the Island except to save the life of a pregnant woman.2 P.E.I. is a small pastoral province of rolling hills and ocean coves in the St. Lawrence Gulf, and since 1988, through various regulatory actions, its government has honored this policy promise to keep the Island abortion-free and to preserve its moral landscape.3

In 1994, P.E.I. formally excluded induced abortion from the definition of basic health services eligible for public health insurance coverage unless the procedure is performed in a hospital and approved as medically required. General Regulations, P.E.I. Reg. EC453/96, § 1(c)(iv) (Can.) enacted pursuant to Health Services Payment Act, R.S.P.E.I. 1988, c. H-2 (Can.). This exclusion was previously an informal but enforced government policy, which Dr. Henry Morgentaler legally challenged in an effort to open a financially sustainable abortion clinic on the Island. In response to the lawsuit, and to keep the Island abortion-free, the government formally promulgated the regulation, and the provincial court of appeal upheld the regulation as valid law. Morgentaler v. Prince Edward Island (Minister of Health and Social Services) (1996), 139 D.L.R. 4th 603, 609 (P.E.I.C.A.). In 2013, Health P.E.I., the crown corporation responsible for the provision and delivery of provincial health services, developed a business case for a hospital-based abortion clinic after three physicians expressed interest in providing on-Island services. In 2014, however, a CBC investigative report documented Ministerial interference with the proposal, shutting down further development or approval of the business case as against government policy. See Abortion Clinic Working Group Was Convened by Health PEI, CBC News (May 30, 2014), http://www.cbc.ca/news/canada/prince-edward-island/abortion-clinic-working-group-was-convenedby-health-pei-1.2659470 (https://perma.cc/R6F6-99CS); Abortion Service on P.E.I. Would Have Saved Money: Report, CBC News (Oct. 20, 2014), http://www.cbc.ca/news/canada/prince-edward-island/abortion-serviceon-p-e-i-would-have-saved-money-report-1.2803587 (https://perma.cc/JT9G-Q75N). ↵